1994 P Cr (PLP)
MUHAMMAD ARSHAD — Petitioner Versus THE STATE and another — Respondents
| Citation | 1994 P Cr (PLP) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | MUHAMMAD ARSHAD — Petitioner Versus THE STATE and another — Respondents |
Q1: What are the key laws and sections cited in 1994 P Cr (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1994 P Cr (PLP)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1994 P Cr (PLP) (MUHAMMAD ARSHAD — Petitioner Versus THE STATE and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- ----S. 448/337-H(ii)/365/440---West Pakistan Arms Ordinance (XX of 1965), S.13---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss.4(2) & 5---Criminal Procedure Code (V of 1898), S.173---Constitution of Pakistan (1973), Art.199---Constitutional petition---Trial Court after taking cognizance could not permit the Assistant Advocate-General to withdraw the challan and resubmit the same after making amendments in his own discretion-- Station douse Officer of Police Station after having completed the investigation could forward the report directly to the Special Court under S.173, Cr.P.C.-- Despite the impropriety of the opinion given by the Assistant Advocate-General, the opinion itself recommending the addition of 5.324, P.P.C. in the challan was not based on any credible evidence or material emanating from the challan---Orders passed by Special Court permitting the Assistant Advocate General to withdraw the challan and resubmit the same and issuing notice to accused thereon were consequently declared to be of no legal effect and set aside accordingly.
- Syed Afzal Haider for Petitioner.
- Through this Constitutional petition, the petitioner seeks to challenge the assumption of jurisdiction by Special Court No.5 (Faisalabad) constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975. The brief facts leading to the case are that the petitioner alongwith two others were: proceeded against under sections 440, 379, 365, 452, 337-H(ii), P.P.C. and 13/20/65 of Arms Ordinance vide F.I.R. No.489/94, Police Station Nishat Abad, District Faisalabad. It is alleged that they after having armed themselves with rifles .222 bore and .12 bore entered complainant's Haveli and resorted to indiscriminate firing. After investigation, the challan was submitted before the learned Special Court under section 448/337-H(ii)/365/440, P.P.C. and section 452/379 were dropped. On 18-5-1994, petitioner moved an application before the learned trial Court praying that the offences with which he had been charged do- not fall within the ambit of the Schedule attached with Act X V of 1975 and therefore, the Court had no jurisdiction to proceed with the trial. This application was argued on 12-6-1994. On 16-6-1994 an order was passed which is Annexure "C" with this petition wherein the learned trial Court returned the challan to the learned Assistant Advocate-General for its propel scrutiny and he was directed as under:--
- It is surprising that on 14-6-1994, the learned Assistant Advocate-General submitted an opinion before the learned trial Court stating that:--
- 2. Pursuant to this opinion by the learned Assistant Advocate General, the learned Special Judge passed the order, dated 14-6-1994 which reads as under:--
- 3. Syed Afzal Haider, Advocate, the learned counsel for the petitioner submits:--
- (ii) that the learned trial Court instead of giving the finding on the application submitted by the petitioner, permitted the learned Assistant Advocate-General to withdraw the challan and fill up the lacunas which is contrary to law; and
- 4. The learned Additional Advocate-General, on the other hand, submits:
- (i) That pursuant to the amendment made by the learned Assistant Advocate-General and the order, dated 14-6-1994 passed by the learned Special Court, the amendment has become an act of the Court and, therefore, it has to be given due judicial weight;
- 5. I have heard the learned counsel for the petitioner as well as the learned Additional Advocate-General.
- 6. I am afraid the orders, dated -14-6-1994 and 16-6-1994 whereby the Court granted permission to the learned Assistant Advocate-General to withdraw the challan are orders which do not have the mandate of law and which militate against the spirit of law for following reasons:--
- (i) after taking cognizance there is no provision in the Code of Criminal Procedure whereby the trial Court can permit an Assistant Advocate General to withdraw the challan and resubmit it after making amendments in his own discretion;
- (iv) that the opinion of the learned Assistant -Advocate-General dated 14-6-1994 which is Annexure "D" with the petition indicates that the learned law officer has given his opinion merely after reading the F.I.R. and did not care to examine the entire record. Notwithstanding the impropriety of the said opinion, the opinion itself on the face of it, is not based on any credible evidence/material emanating from challan.
- 8. For aforementioned reasons this petition is accepted. The orders, dated 14-6-1994 and 16-6-1994 passed by the learned Special Judge, Faisalabad E3 whereby he permitted the learned Assistant Advocate-General to withdraw the challan; resubmit the same and issue notice to the accused for 19-6-1994 are set aside and are declared to be of no legal effect. The application of the petitioner shall be deemed to be pending before the Judge, Special Court No. 5, Faisalabad who shall decide the same after hearing both the parties by 30-9-1994.
Headnotes / Summary
S. 448/337-H(ii)/365/440
West Pakistan Arms Ordinance (XX of 1965), S.13
Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss.4(2) & 5
Criminal Procedure Code (V of 1898), S.173
Constitution of Pakistan (1973), Art.199
Constitutional petition
Trial Court after taking cognizance could not permit the Assistant Advocate-General to withdraw the challan and resubmit the same after making amendments in his own discretion-- Station douse Officer of Police Station after having completed the investigation could forward the report directly to the Special Court under S.173, Cr.P.C.-- Despite the impropriety of the opinion given by the Assistant Advocate-General, the opinion itself recommending the addition of 5.324, P.P.C. in the challan was not based on any credible evidence or material emanating from the challan
Orders passed by Special Court permitting the Assistant Advocate General to withdraw the challan and resubmit the same and issuing notice to accused thereon were consequently declared to be of no legal effect and set aside accordingly.
Judgment & Decree
"The case was withdrawn by the prosecution on 12-6-1994 for further scrutiny-and it has been again submitted today and learned A.A.-G. has reported that section 324, P.P.C. be added and this Court has the jurisdiction. Be entered in the relevant register and the accused be summoned for 19-6-1994."
3. Syed Afzal Haider, Advocate, the learned counsel for the petitioner submits:-- (i) That under section 4(2) Act XV of 1975, the Court has to satisfy itself qua its jurisdiction and only try an offence which is mentioned in the schedule; (ii) that the learned trial Court instead of giving the finding on the application submitted by the petitioner, permitted the learned Assistant Advocate-General to withdraw the challan and fill up the lacunas which is contrary to law; and (iii) that it is only the S.H.O. who can submit a report under section 173, Cr.P.C. (which is called challan) or submit an interim report if the facts and circumstances of a case so permit.
4. The learned Additional Advocate-General, on the other hand, submits: (i) That pursuant to the amendment made by the learned Assistant Advocate-General and the order, dated 14-6-1994 passed by the learned Special Court, the amendment has become an act of the Court and, therefore, it has to be given due judicial weight; (ii) that generally the rifles used in such like occurrence are automatic or semi-automatic and, therefore, the offence would fall within the domain of the learned Special Court's jurisdiction.
5. I have heard the learned counsel for the petitioner as well as the learned Additional Advocate-General.
6. I am afraid the orders, dated -14-6-1994 and 16-6-1994 whereby the Court granted permission to the learned Assistant Advocate-General to withdraw the challan are orders which do not have the mandate of law and which militate against the spirit of law for following reasons:-- (i) after taking cognizance there is no provision in the Code of Criminal Procedure whereby the trial Court can permit an Assistant Advocate General to withdraw the challan and resubmit it after making amendments in his own discretion; (ii) under section 173, Cr.P.C. it is only the S.H.O./I.O. who can submit a final report and he may even submit a supplementary report if the circumstances so warrant; (iii) besides the provisions contained in section 173, Cr.P.C. (under the general law), there is section 5 of Act XV of 1975 which provides that the officer-in-charge of police station shall complete the investigation and forward the report directly to the Special Court under section 173, Cr.P.C. within fourteen days; (iv) that the opinion of the learned Assistant -Advocate-General dated 14-6-1994 which is Annexure "D" with the petition indicates that the learned law officer has given his opinion merely after reading the F.I.R. and did not care to examine the entire record. Notwithstanding the impropriety of the said opinion, the opinion itself on the face of it, is not based on any credible evidence/material emanating from challan.
7. I am fortified in my view by judgment of this Court Muhammad Shafi v. The State P L D 1985 Lah. 173.
8. For aforementioned reasons this petition is accepted. The orders, dated 14-6-1994 and 16-6-1994 passed by the learned Special Judge, Faisalabad E3 whereby he permitted the learned Assistant Advocate-General to withdraw the challan; resubmit the same and issue notice to the accused for 19-6-1994 are set aside and are declared to be of no legal effect. The application of the petitioner shall be deemed to be pending before the Judge, Special Court No. 5, Faisalabad who shall decide the same after hearing both the parties by 30-9-1994. N.H.Q./M-1781/L Petition accepted.